England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/01/2015

Mr C M G Ockelton :

1. The claimant, a national of Bangladesh, brings these proceedings to challenge the decision of the defendant on 19 February 2013 refusing him leave to remain as a Tier 4 (General) Student. Proceedings were commenced just over three months later. On 7 October 2013 Walker J extended time and granted permission on the ground that it was arguable that the claimant had been treated unfairly.
2. It is as well to begin with the facts. In my judgment there is no doubt about the relevant facts, but they have been to an extent obfuscated by the claimant's unwillingness to give a full account, and an unfortunate arithmetical slip by Mr Hawkin at the hearing. The claimant came to the United Kingdom in May 2007, aged 23. He had leave as a student. He successfully applied for extensions. His most recent period of leave expired on 8 October 2012. His leave was granted on the basis that he was a student at the London Metropolitan University.
3. He stopped attending that university on 11 July 2012. At the hearing Mr Hawkin told me that the claimant disputes the assertion that he stopped attending university, but the position is that the Secretary of State in her acknowledgment of service made that precise assertion and indicated the basis upon which she made it – a report from the university. In the subsequent fourteen months, the claimant's only evidence to the contrary is that he was undertaking the first semester of his third year. He appears to accept that he had not paid all the fees. As the academic year was due to end on (at the latest) 8 October 2012, I see no basis for saying that a person who had attended only the first semester was attending after July. I therefore accept the Secretary of State's assertion.
4. Before the expiry of the claimant's leave, London Metropolitan University was removed from the list of approved sponsors. The claimant did not need specific notice of that: he discovered it from the press. He appears to have taken no action. His leave duly expired on 8 October. On 5 November 2012 (the 28^th day of his remaining without leave) he made an application for further leave to remain, saying that he was going to study at St John College. His application was incomplete, as it was not accompanied by specified documents. The course he proposed to follow did not commence until the day after his application for leave, 6 November 2012, which (I say for the avoidance of doubt) was more than 28 days after 8 October 2012. The "highly trusted sponsor" status of St John College was also revoked, this taking place while the claimant's application was under consideration. The revocation of St John College's sponsor licence invalidated his confirmation of acceptance for studies, and he was informed of that in a decision refusing his application for leave, on 19 February 2013. That is the decision he challenges.
5. He claims, first, that he should have been given a decision entitling him to an in country right of appeal, and, secondly, that he should have been granted 60 days to find another sponsor. His grounds seek an order quashing the decision of 19 February 2013 and requiring the defendant to grant the claimant a period of 60 days to find a Tier 4 sponsor and submit a fresh application for consideration. He asserts that, given that the Secretary of State's decision on the sponsor licences were outside the claimant's control, it was unfair to (in effect) penalise him for making applications to study at colleges which turned out not to have sponsor licences. There appears to be a further allegation that, as the Secretary of State's guidance for London Metropolitan University students was only issued on 11 October 2012, when the claimant's leave had already expired, he had some further expectation of the Secretary of State. He cites Patel [2011] UKUT 00211 (IAC).
6. The problem is that, despite the eloquent way in which Mr Hawkin argued it, and with the greatest respect to the judge who granted permission, it is very difficult to see any merit at all in the claimant's case. To begin at the beginning, it is wholly unarguable that the Secretary of State should have in some way "granted" him a right of appeal. Rights of appeal arise from statute, not from the Secretary of State's fiat: that is clear from the decision of this court in Merriman-Johnson v SSHD [2010] EWHC 1598 (Admin), which the claimant cites. It is fair to say that this particular ground was not argued at the substantive hearing.
7. Moving then onto fairness, it is not easy to see why the claimant says that he has been treated unfairly. He decided to remain after the expiry of his leave. He made an application which, if refused, could not carry a right of appeal. As Ms Rowlands was able to show at the hearing, that application was determined in accordance with the rules. It could not succeed under the rules, because it did not meet the requirements of paragraph 245ZX(l), because of the period of 29 days before the commencement of the new course: the rules specify a maximum of 28 days. Even if St John College had not lost its sponsor licence, the claimant's application would have failed, and he would have had no right of appeal.
8. Apparently ignoring that, the claimant says that he should have had the benefit of concessions that are afforded to those who make their applications during the course of existing leave, but choose colleges that fail to meet the Secretary of State's approval. In such circumstances there is a policy of deferring what would otherwise necessarily be a negative decision for 60 days in order to allow the applicant to find another college and vary his application accordingly. The statutory context is the provisions of s 3C of the Immigration Act 1971, which allow an application made by a person during the course of existing leave to be varied at any time before it has been decided. There are no equivalent provisions for a person who makes an application at a time when he has no leave. The policy, set out by the claimant in paragraph 30 of Mr Hawkin's skeleton argument, deals with the three possible ways in which the revocation of a sponsor's licence can impact on a person who has an application under consideration with the Home Office: where there is at the time at least 60 days leave to remain remaining; where the original leave to remain has expired whilst the application was under consideration (my emphasis); and where the applicant has less than 60 days leave remaining. The extract from the guidance is followed by an assertion by Mr Hawkin that the same principles apply to an application made at a time when the applicant had no extant leave. I see no proper basis for saying that.
9. Of course the Secretary of State has an obligation to be fair. But she does that by publishing rules and policies, and by determining cases in accordance with them. There is an unfortunate tendency for claimants to equate "what is fair" with "what I want". At least four different interests are likely to need to be balanced in an assessment of fairness: the claimant's position and conduct, the Secretary of State's position and conduct, the general public interest, and the position of other actual and potential applicants. The claimant's case is based solely on some theory that his own conduct in remaining without leave entitles him to a benefit that no rule and no policy gives him.
10. In particular, it must be emphasised that the 60 days to which the relevant policies apply, is 60 days further s 3C leave; and s 3C leave only arises as a result of an application made whilst the applicant had existing leave. There is simply no basis at all for suggesting or (as in the present case) demanding a grant of 60 days leave to a person who has allowed his leave to expire without making a proper application.
11. The claimant's application could not succeed under the rules, and there is no identifiable basis upon which it was unfair to apply the rules to him. At the date of the hearing he had been in the United Kingdom for over two years since his last leave expired. He has obviously had enough opportunity to make a further application by now if he chose to do so. It is therefore not easy to see how his case could succeed even taken at its highest. But it ought not to be taken at its highest. It is a claim which on any basis fails.